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2005 DIGILAW 708 (MP)

C. P. SAHU v. STATE OF M. P.

2005-07-12

SUGANDHI LAL JAIN

body2005
ORDER S.L. Jain, J. Invoking extraordinary jurisdiction of this Court u/s 482 of the Code of Criminal Procedure (henceforth, 'the Code'), petitioners have filed this petition for quashing the order dated 8-8-1997 passed by JMFC, Mandla in Criminal Case No. 2330/95 and also the proceedings of the said case. The facts giving rise to the petition are that Forest Department filed a complaint against the petitioners on 10-11-1983 alleging that they have committed an offence punishable u/s 26 of Indian Forest Act (henceforth 'the Act'). The prosecution examined certain witnesses and the case was fixed for judgment. At the time of writing the judgment, the learned trial Magistrate found that material witnesses Jugraj, Imrat, Shanker and Komal Singh, who felled the trees at the instance of the accused persons and whose evidence is essential for just decision of the case, have not been examined as their names were not in the list of witnesses, therefore, vide impugned order, he directed to summon these witnesses. I have heard Shri H.S. Dubey, learned counsel for the petitioners and Shri Asseem Dixit, learned Government Advocate for the respondent/State. Learned counsel for the petitioners submits that the names of the witnesses who were directed to be summoned vide the impugned order, were not mentioned in the list of prosecution witnesses. He also submits that filing of the list of prosecution witnesses is essential unless the complainant is the only witness in the case and along with the summons issued under sub-section (1) of section 204 of the Code the list of witnesses shall be served. It was not competent for the Magistrate to issue process without complying with this mandatory provision. Non-filing of the list of prosecution witnesses and not mentioning the names of some of the witnesses in the list are two different things. In this case, admittedly, the list of the prosecution witnesses was filed. The only flaw that appears to be in this case is that the names of the witnesses who have been directed to be summoned by the impugned order, were not mentioned in the list of witnesses. It cannot be said that there was any violation of mandatory provision of law. The powers u/s 311 of the Code are very wide. The Court can, at any stage of the trial, summon any person as a witness. It cannot be said that there was any violation of mandatory provision of law. The powers u/s 311 of the Code are very wide. The Court can, at any stage of the trial, summon any person as a witness. No embargo has been put in section 311 of the Code that only those witnesses can be summoned whose names find place in the list of witnesses filed by the prosecution along with the complaint. The object of the section is obviously to enable the Court to arrive at the truth or otherwise of the fact under investigation by summoning and examining the witnesses who can give relevant evidence irrespective of the fact whether a particular party wants to summon them or not. This section confers a wide discretion on the Court to act as the exigencies of justice require. The section consists of two parts; one gives the discretionary powers to the Court and the other imposes obligation on it. Where the evidence of a witness appears to be essential for just decision of the case, it is the obligation on the Court to summon him. When the trial Court, on the basis of the material on record, found that the evidence of the witnesses mentioned in the order impugned is essential for just decision of the case, it was obligatory for the Magistrate to summon them. In the facts and circumstances of the case, it cannot be said that the evidence of the witnesses was not essential for the just decision of the case. The Court cannot be precluded from exercising its discretion only on the ground that the names of the witnesses are not mentioned in the list of the prosecution witnesses or the case was posted for judgment. Therefore, I do not find any illegality in the order impugned and the same does not call for any interference. Learned counsel for the petitioners also submitted that the proceedings before the trial Court should be quashed on the ground of inordinate delay also. The complaint case which was instituted on 10-11-1983 could not yet be disposed of. The prosecution against the accused is pending for more than 22 years which is causing not only mental agony to them but also affecting their service career. No prosecution should be allowed to drag on for years to the prejudice of the accused. The complaint case which was instituted on 10-11-1983 could not yet be disposed of. The prosecution against the accused is pending for more than 22 years which is causing not only mental agony to them but also affecting their service career. No prosecution should be allowed to drag on for years to the prejudice of the accused. Per contra, learned counsel for the State submits that the trial of the case was not delayed for any fault on the part of the prosecution. The revision petition was filed in the year 1997. The trial was stayed by this Court and the delay after filing of the revision cannot be attributed to the prosecution. The petitioners have not filed the copies of the relevant order sheets to satisfy the Court that the prosecution was responsible for the delay. A serious offence of felling trees was committed by the petitioners who are responsible officers of the Government. Therefore, it is expedient in the interest of justice to permit the prosecution to continue. It is true that there is no material before this Court to come to a conclusion that the prosecution was responsible for the delay in the trial, but this fact cannot be ignored that the trial is pending since 1983, therefore, in the facts and circumstances of the case, instead of quashing the proceedings of the case on the ground of delay in trial, the trial Court is directed to proceed day to day unless all the witnesses who have been directed to be summoned by the order impugned, are examined. In case, the prosecution is not able to produce the said witnesses within a period of four months from the date of receipt of copy of this order, the trial Court shall close the prosecution evidence and shall proceed further with the matter only on the evidence of the witnesses till then recorded. As a result of aforesaid discussion, this petition has no merit and the same is disposed of with the above directions.